Legal Doc: Motion for Certificate of Appealability

Defendant Jonathan J. Pollard ("Pollard"), by his undersigned attorneys, respectfully submits this Motion for Issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c). Pollard seeks to appeal from a Judgment of the U.S. District Court (Hon. Norma Holloway Johnson) dated and entered August 7, 2001, which dismissed his § 2255 Motion for Resentencing.

Without reaching the merits of the constitutional claims, and without conducting an evidentiary hearing, Judge Johnson ruled that the Motion for Resentencing (which was based upon ineffective assistance of counsel) was barred by AEDPA's statute of limitations, and because Pollard had failed to establish "cause" under McCleskey v. Zant, 499 U.S. 467 (1991), for his prior counsel's failure to raise ineffective assistance in a § 2255 motion filed in 1990.

As shown below, jurists of reason would find Judge Johnson's rulings debatable. This Court should issue a Certificate of Appealability ("COA").

1. When the Government has actively misled a prisoner by falsely representing, in writing, that the prisoner's sentencing counsel had performed in a "skillful" manner and without "any errors," and where the prisoner's habeas lawyer, constrained by an undisclosed conflict of interest, joins in the whitewash of sentencing counsel's ineffective performance, may the Government benefit from its deception by invoking AEDPA's statute of limitations to bar a claim of ineffective assistance of counsel filed within one year after the prisoner has been informed of the facts supporting the claim?

2. Is a habeas lawyer's undisclosed conflict of interest that compels him to misrepresent to his client and the Court that prior counsel had performed "skillfully" and "effectively," and that prevents him from asserting a claim of ineffective assistance of counsel in a § 2255 motion, an "objective factor external to the defense" which constitutes "cause" under McCleskey for the failure to raise ineffective assistance in that § 2255 motion?

3. Where sentencing counsel's deficient performance included the failure to perform duties mandated by prevailing professional norms, and where the defendant did not know of counsel's dutiesand therefore did not become aware of counsel's omissionsuntil years later when informed by new counsel, when does the defendant know the "facts" supporting a claim of ineffective assistance of counsel?

Neither the Government nor the Court below has cited any caseand we submit there is nonethat holds that the Government may actively mislead a prisoner, and then benefit from that deception by arguing the prisoner should have known better than to believe the Government, and should have acted more diligently to uncover the Government's falsehood before AEDPA's statute of limitations expired.

Nor has the Government or the Court below rebutted the case law that holds that a habeas attorney's undisclosed conflict of interest is an "objective factor external to the defense" under McCleskey.

Finally, neither the Government nor the Court below has cited any case that even addresses the issue of whether the prevailing norms of the legal profession are among the facts supporting a claim of ineffective assistance.

Yet, Judge Johnson summarily rejected all of these arguments.

At a minimum, the Court below should have held an evidentiary hearing to determine the facts.

Jurists of reason would find Judge Johnson's summary rulings debatable at the very least. This Court should issue a COA so that the rulings may be reviewed.

On June 4, 1986, pursuant to a written Plea Agreement, Jonathan Pollard pled guilty to conspiracy to commit espionage in violation of 18 U.S.C. § 794(c). It is undisputed that, under the Plea Agreement, the Government was permitted to ask the sentencing judge to impose a "substantial period of incarceration," but was prohibited from asking for the maximum sentence, life in prison. (Ex. A at 4(b))¹ It is also undisputed that Pollard cooperated extensively and provided substantial assistance to the Government. (Ex. F at p. 37) Nevertheless, on March 4, 1987, the Hon. Aubrey E. Robinson sentenced Pollard to the maximum sentence, life in prison. Pollard was represented before, during, and shortly after sentencing by attorney Richard Hibey ("Hibey").

¹ Citations in the form "Ex. ___" are to the exhibits filed with the District Court September 20, 2000 in support of the Motion for Resentencing, attached to the Affidavit of Jacques Semmelman, Esq., sworn to September 19, 2000.

Inasmuch as Hibey had not objected to the first two of these breaches, and had merely asserted a pro forma objection to the third which he then abandoned, Fox, a former Assistant U.S. Attorney, certainly realized that Hibey's omissions appeared to be inconsistent with the claims of Government misconduct, and required explanation. The explanation, as shown below, was that Hibey had been egregiously ineffective in his representation of Pollard. Nevertheless, in the 1990 Motion, without consulting with or informing Pollard, Fox unilaterally decided he would not assert a claim of ineffective assistance of counsel. Significantly, Fox never told Pollard that Hibey's performance had been deficient in any way. (Pollard Decl. 50-52)²

² Citations in the form "Pollard Decl. __" are to the Declaration of Jonathan J. Pollard sworn to August 28, 2000, filed in the District Court September 20, 2000.

Pollard raises no complaints about prior counsel because their work was

skillful

. . . . counsel's pleadings and sentencing allocutions were

eloquent

, albeit ultimately unsuccessful, efforts on his part to persuade the court not to impose the maximum sentence. Defendant does not allege

any errors

by counsel . . .

(Id. at p. 4) (emphasis added). The Government's laudatory description of Hibey's performance was false, and the Government and Fox both knew it.

In reply, Fox still had the opportunity to argue that no inference should be drawn from Hibey's failure to object, because the Government's praise of Hibey's performance was unwarranted. InsteadastonishinglyFox endorsed the Government's argument by declaring that the Government's praise was fully justified. Acknowledging that the Government was contending that the 1990 Motion should be denied due to the "absence of a claim of ineffective assistance of counsel," Fox gratuitously wrote, "[w]e do not challenge the government's claim that Pollard's prior counsel skillfully negotiated a plea agreement and effectively allocated for his client. Our criticism is not of prior counsel but the government's failure to live up to its side of the bargain." (Ex. R at pp. 5, 7) (emphasis added). As shown below, that outrageous and false concession utterly decimated the 1990 Motion.

This was not mere "ineffective" performance by Fox, an experienced defense attorney. As set forth in the Declaration submitted below by former U.S. District Judge George N. Leighton³, "it would have been obvious to any criminal defense attorney" that praising Hibey "would torpedo the 1990 Motion." (Leighton Decl. 44) The only explanation for Fox's extraordinary failure to raise ineffective assistance, or to question Hibey's performance in any way, is that he was conflicted and could not bring himself to criticize Hibey. Faced with the choice of either embarrassing Hibey or resigning from this high-profile case, Fox opted to have it both waysto remain in the case and refrain from criticizing Hibey, even at the risk of sinking his client's motion. (Id. 42-50)

³ Judge Leighton's Declaration, sworn to October 2, 2001 (the "Leighton Decl."), was filed October 5, 2001 in support of Defendant's Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c).

After the District Court (Robinson, J.) denied the 1990 Motion, United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990), this Courtin a 2-1 decisionaffirmed. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). Crediting the Government's praise of Hibey (which Fox had ratified), the majority could not reconcile (a) Fox's position that the Government had acted in gross violation of Pollard's rights, with (b) Hibey's utter failure to object to the Government's conduct. See Pollard, 959 F.2d at 1025 (we "think it telling that Pollard's counsel [Hibey]. . . never claimed an implicit breach of the agreement not to seek a life sentence."); see also id. at 1028, 1030.

In a powerful dissent, Judge Williams found that the Government had breached the Plea Agreement, and that the breach was "a fundamental miscarriage of justice requiring relief." Id. at 1032 (Williams, J., dissenting). Judge Williams would have vacated the life sentence. Id. at 1039.

After this Court's 2-1 ruling, and the denial of a petition for certiorari, a disappointed Pollard assumed, reasonably but incorrectly, that everything that could be done had been done, and that he had no further avenue of relief within the legal system. (Pollard Decl. 53) The effect of the Government's false praise of Hibey, and of Fox's whitewash, was to create the convincing but false illusion that Hibey had done an excellent job, and to steer Pollard away from any possible thought that Hibey had been ineffective. Pollard had every right to believe what the Government had written, namely, that Hibey had handled the sentencing in a "skillful" manner without "any errors," especially since no one, especially Fox, told Pollard the truththat Hibey's performance had been woefully deficient.

Shortly before March 2000, Pollard learned, through a chance conversation with another inmate, that his sentencing attorney had had a duty to file a Notice of Appeal from the sentence and had not done so. (Pollard Decl. 55) Pollard proceeded with exceptional diligence, and by May 2000, had located and retained the undersigned counsel, who informed Pollard that his life sentence was the direct result of ineffective assistance of counsel, and who agreed to represent Pollard on a pro bono basis.

As shown below, Pollard was sentenced to life in prison because his attorney, Hibey, failed to protect his most basic constitutional rights at sentencing. Those rights included the right to have the Government honor its Plea Agreement. Those rights also included the right not to be sentenced on the basis of false or incorrect Government allegations. Hibey utterly failed to protect those rights.

Most egregiously, Hibey never filed a Notice of Appeal from the life sentence, and never informed Pollard that if he wished to appeal, he had to file a Notice of Appeal within ten days. (Pollard Decl. 4, 42) Having failed to represent his client effectively at sentencing, and with his client sentenced to life in prison and locked incommunicado in a ward reserved for the criminally insane (id. 46), Hibey sealed his client's fate by not even bothering to file a Notice of Appeal so that this Court could review the life sentence. Hibey thus deprived Pollard of direct judicial review of the life sentence and of the constitutionally defective process that led to it. In a shocking statement after sentence was imposed, Hibey cavalierly announced to the press that Pollard "has no avenue of appeal[.]" (Ex. CC)

On September 20, 2000, the undersigned counsel filed a Motion for Resentencing under 28 U.S.C. § 2255 (the "Motion for Resentencing"), which raised multiple claims of ineffective assistance of counsel based upon Hibey's deficient performance before, during, and immediately after sentencing.

As set forth in the Motion for Resentencing, the process that resulted in Pollard's life sentence was fundamentally contaminated. Most significantly, the Government breached its Plea Agreement, in violation of Pollard's Fifth Amendment right to due process, and Hibey failed to object or to enforce the Plea Agreement, in violation of Pollard's Sixth Amendment right to effective assistance of counsel.

After agreeing in the Plea Agreement not to ask the Court to impose a life sentence, the day before sentencing the Government submitted a Declaration by Secretary of Defense Caspar Weinberger, who stated that "It is difficult for me, even in this so-called year of the spy,' to conceive of a greater harm to national security than that caused by the defendant[.]" (Ex. N at 2) The phrase the "year of the spy" was an undisguised reference to three recent high-profile espionage cases (the Walker, Whitworth and Pelton cases). Newspapers and magazines discussing those cases had proclaimed the "year of the spy." (Ex. AA) In each case, the defendant had delivered classified information to the Soviet Union. Each had been sentenced to life in prison. Each sentence had been imposed within seven months preceding Pollard's sentencing, and each sentence had received extensive publicity. (Exs. X, Y, Z)

By pointing out that it was the "year of the spy," and by then saying that Pollard had caused greater harm to national security than had any other spy, the Government was unambiguously asking for a sentence as severe as those imposed on Walker, Whitworth and Pelton: life in prison. That was a breach by the Government of the Plea Agreement. To hammer home that even a life sentence would be lenient, Weinberger falsely accused Pollard of "treason," a capital offense which Pollard had not committed and with which he had not been charged. (Ex. N at 3)

Under prevailing professional norms, Hibey should have objected to the breach and should have pursued a remedy. See ABA Standards for Criminal Justice §§ 14-2.1(b)(ii), 18-6.3(f)(iii) (1980 ed. & 1986 Supp.) ("ABA Standards"). Yet, Hibey did not object to the Government's breach of the Plea Agreement. Hibey only argued the merits of whether or not Pollard had in fact caused more damage than had the other spies. (Ex. O at pp. 5-7)

But even there Hibey was remiss, because he failed to obtain and introduce public documents from the Walker and Whitworth dockets that would have repudiated the assertion that Pollard (who had delivered classified information to Israel) had caused more harm than had these Soviet spies. The Director of Naval Intelligence had told Whitworth's sentencing judge that the information Whitworth had provided the Soviet Union "had war-winning implications" and constituted "the most damaging impact ever suffered by the U.S. communications security establishment." (Ex. U at p. 10) (emphasis added). The Director of Naval Intelligence had told Walker's sentencing judge that the information Walker had provided the Soviet Union "would have been devastating' to the United States in time of war" and had "jeopardized the backbone of this country's national defense and countless lives of military personnel." (Ex. V at 3(f), 18) These documents rebutted Weinberger's assertion that Pollard had caused the greatest harm in the "year of the spy." But Hibey did not obtain or introduce them. ⁴

⁴ Earlier, in connection with a discovery dispute, the Government had successfully argued that its damage assessment in the Pelton case was irrelevant to Pollard's sentencing and should not be produced. (Exs. I, J) Even though Weinberger's declaration rendered the Pelton damage assessment unquestionably relevant, Hibey never asked for it again. Nor did Hibey appeal the District Court's denial of his earlier motion for production.

Under prevailing professional norms in effect at the time, Hibey (a) should have demanded an evidentiary hearing to determine the truth of Weinberger's allegation; (b) should have demanded that the Government either meet its burden of proving the allegation, or else withdraw it; (c) should have offered rebuttal evidence readily available from the Walker and Whitworth dockets; and (d) should have demanded judicial findings of fact. See ABA Standards § 18-6.4 ("sentencing court should conduct a hearing with respect to all material factual disputes arising out of any presentence reports or the evidentiary proffers of the parties. . . . the sentencing court should permit the parties to subpoena witnesses and to cross-examine persons who rendered reports to the court and persons providing information contained in such reports") (emphasis added). Hibey did none of these things.

Nor did Hibey tell Pollard he was entitled to an evidentiary hearing at which the Government would bear the burden of proof on this very serious allegation. (Pollard Decl. 16)

The Government breached the Plea Agreement in other ways. The Government had agreed to confine its allocution to the "facts and circumstances of the offenses." (Ex. A at 4(b)) At sentencing, the Government engaged in vicious attacks on Pollard's character, improperly calling him a "recidivist" who was "traitorous," "arrogant," "deceitful," "contemptuous of this Court's authority," and who had a "'warped and skewed' perspective[.]"Pollard, 959 F.2d at 1036 (Williams, J., dissenting). These were not "facts and circumstances of the offenses." The Government's objective was to inflame the judge with vitriolic characterizations, a tactic the Plea Agreement prohibited. Hibey never objected.

Finally, the Plea Agreement obligated the Government to "bring to the Court's attention the nature, extent and value of [Pollard's] cooperation[.]" (Ex. A at 4(a)) In its Sentencing Memorandum, the government admitted that Pollard's "post-plea cooperation has proven to be of considerable value to the government's damage assessment analysis, and the ongoing investigation of the instant case. . . . The government acknowledges that defendant has been candid and informative in describing his wrongdoing, and that it has derived benefit from the information defendant has provided." (Ex. F at p. 37) However, the government placed this acknowledgement in a section titled "FACTORS COMPELLING SUBSTANTIAL SENTENCE," in which the Government argued that the sentencing judge should disregard Pollard's cooperation. (Id. at pp. 35, 37-39, 54-55)

This time, Hibey objected. Hibey stated that "By failing to give Mr. Pollard proper credit for his cooperation, the Government has not honored its part of the plea bargain." (Ex. K at p. 42) However, Hibey took no steps to secure any remedy for that breach of the Plea Agreement.

In sum, Hibey's handling of this case was deplorable. His performance was "way below that of a reasonably competent attorney." (Leighton Decl. 24) It is not necessary to determine the interpersonal or other factors that caused Hibey to perform so miserably. The undisputed factssuch as the incomprehensible failure to file a Notice of Appeal from a life sentencespeak for themselves.

Pollard suffered enormous prejudice as a result of Hibey's deficient performance. He was deprived of the benefits of his Plea Agreement, sentenced to life in prison on the basis of untrue allegations, and then deprived of a direct appeal from the sentence. See Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (if counsel deprives defendant of an appeal he would have taken, prejudice is presumed).

Our Motion for Resentencing asked the Court to vacate the life sentence and allow Pollard to be resentenced with competent counsel on a full and accurate record, free of misstatement, and in a manner wholly compliant with the Government's obligations under the Plea Agreement.

Even though the Motion for Resentencing was the second § 2255 motion filed on Pollard's behalf (the first being Fox's 1990 Motion), it was properly filed in the District Court. A second § 2255 motion may be filed without leave of this Court where (as here) the claim pre-dates AEDPA and where there is "cause" for the defendant's failure to raise the claim in the first motion. See United States v. Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998). The "cause" of Pollard's failure to raise ineffective assistance in the 1990 Motion was Fox's unilateral unwillingness to do so, due to his undisclosed conflict of interest that rendered him unwilling to criticize Hibey irrespective of the consequences to his client.

The Government's Response to the Motion for Resentencing

After Judge Johnson directed the Government to respond to the Motion for Resentencing, the Government requested and was granted substantial time to "consult with others who were involved in the original prosecution and defense of this matter." (Govt's Proposed Schedule dated Oct. 26, 2000, at 1) Despite such consultation, the Government never submitted any affidavit from Fox, Hibey, or anyone else rebutting anything in Pollard's Declaration.

The Government's sole response to the Motion for Resentencing consisted of a Motion to Dismiss based upon AEDPA's statute of limitations. The Government took the position that Pollard knew or should have known the facts supporting his claim of ineffective assistance long before 2000. The Government did not explain, or attempt to explain, its false praise of Hibey in opposition to the 1990 Motion that had led Pollard astray. (Ex. Q at p. 4)

In opposition to the Motion to Dismiss, we pointed out that under AEDPA, the statute of limitations only begins to run when the prisoner knows, or through the exercise of due diligence reasonably should have known, the "facts" supporting the claim of ineffective assistance. 28 U.S.C. § 2255(4). AEDPA requires a fact-intensive judicial inquiry into two related issues:

1. When did the prisoner actually discover the facts that support his claims under § 2255?

2. Assuming the prisoner filed his motion within one year of actually discovering the facts, when would a hypothetical prisoner in the same circumstances have discovered those facts through the exercise of reasonable diligence?

We further pointed out that, as a result of the Government's false praise of Hibey in opposition to the 1990 Motion, in which Fox had disingenuously joined, Pollard was left with no reason to suspect that Hibey's performance had been deficient. Typically, if the Government makes a misrepresentation, opposing counsel challenges it, and the prisoner is thus made aware of the untrue nature of the Government's statement. That did not happen here. No oneleast of all Pollard's own habeas lawyerwas telling the truth about Hibey's performance. False praise coming from both directions (the Government and habeas counsel) would have misled any prisoner. And, while under ordinary circumstances the passage of time might suggest a prisoner's lack of diligence, Pollard's situation was different: the Government had affirmatively misled him, and Fox had compounded the misrepresentation. In the absence of a specific event that would have put Pollard on inquiry notice that the Government had lied, the mere passage of time did not evidence a lack of diligence.

We also argued that the unique circumstances of this case (the Government's falsehood coupled with Fox's whitewash) warrant equitable tolling.

We requested an evidentiary hearing at which the Court could properly ascertain, on a full record, that Pollard had actually learned the facts supporting his claims only in 2000, and at which the Court could determine the reason why he had not learned them earlier, including the effect of the Government's and Fox's false praise of Hibey on Pollard's state of mind. See 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon . . . and make findings of fact[.]").

Several pre-eminent criminal law scholars (including Professors Anthony Amsterdam, Charles Ogletree, and Michael Tigar) submitted an amicus curiae brief dated December 28, 2000 in support of our position.

On August 7, 2001, without conducting an evidentiary hearing, Judge Johnson dismissed the Motion for Resentencing. United States v. Pollard, 161 F. Supp. 2d 1 (D.D.C. 2001).

Judge Johnson ruled sua sponte that we had not established "cause" under McCleskey for Pollard's failure to raise ineffective assistance in the 1990 Motion. While refusing an evidentiary hearing, Judge Johnson ruled that we had not proven that the reason for Fox's failure to raise ineffective assistance was his unwillingness to criticize Hibey. Pollard, 161 F. Supp. 2d at 6-7. Without an affidavit from Fox or any other evidence to support her conclusion, Judge Johnson decided that Fox had engaged in a "strategy" not to raise ineffective assistance in the 1990 Motion. Id. at 5.

Judge Johnson also ruled that the Motion for Resentencing was barred by AEDPA's statute of limitations. Judge Johnson foundwith no support in the recordthat Pollard actually knew the facts supporting his claim of ineffective assistance years before 2000. Id. at 9 n.5. Judge Johnson disregarded Pollard's specific sworn denialunrebutted by any conflicting testimony or documentationthat before 2000 he did not know numerous essential facts supporting his claims of ineffective assistance. (Pollard Decl. 3, 6, 16, 40-42, 50-61)

Judge Johnson ruled that in any event the passage of time in and of itself establishes that Pollard "would have" learned the facts supporting his claims much earlier had he exercised due diligence. 161 F. Supp. 2d at 12. In reaching that conclusion, Judge Johnson gave no weight to the Government's false praise of Hibey, or Fox's whitewash.

Judge Johnson also held that as a matter of law, AEDPA's statute of limitations is never subject to equitable tolling, but that if it is, Pollard is not entitled to it. 161 F. Supp. 2d at 12-13.

Judge Johnson never reached the merits of Pollard's claim that his life sentence was the result of violations of his constitutional rights to due process and to effective assistance of counsel.

A COA must issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). As set forth below, we have made the requisite showing. ⁵

⁵ We respectfully submit that there can be no serious dispute that Pollard has raised valid claims of the denial of his constitutional rights. Even without knowing about Hibey's deficiencies, Judge Williams found that the Government had breached the Plea Agreement, in violation of Pollard's constitutional rights. See Pollard, 959 F.2d at 1032-39 (Williams, J., dissenting). The newly-adduced proof of ineffective assistance provides further support for Pollard's constitutional claims. (Leighton Decl. 20-27) At a minimum, jurists of reason would find the constitutional claims debatable.

On October 5, 2001, we filed a Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c) (the "Motion for a COA").

In support, we submitted the aforementioned Declaration by former U.S. District Judge George N. Leighton. Judge Leighton has served as a U.S. District Judge for the Northern District of Illinois from 1976 to 1987; has sat by designation on the U.S. Court of Appeals for the D.C. Circuit; and continues to be active, as a practitioner and law professor, in the area of prisoners' rights and post-conviction remedies. (Leighton Decl. 4-12) Judge Leighton has analyzed Judge Johnson's Memorandum Opinion and states: "I declare as a lawyer, law professor, and most particularly as a former United States District Judge, that jurists of reason would find the rulings in the Court's Opinion and Judgment debatable at the very least." (Leighton Decl. 15) (emphasis added).

By Order dated March 4, 2002, this case was reassigned to Hon. Thomas F. Hogan.

On September 2, 2003, Judge Hogan heard oral argument on the Motion for a COA. By Memorandum Opinion and Order dated November 12, 2003, Judge Hogan denied the motion. On December 16, 2003, this Court issued an Order setting forth a briefing schedule for the instant motion.

Judge Johnson ruled that Pollard had failed to show "cause" under McCleskey for Fox's failure to raise ineffective assistance in the 1990 Motion. Pollard, 161 F. Supp. 2d at 5-6. Jurists of reason would find that ruling debatable at the very least. (Leighton Decl. 31-66)

Fox's undisclosed conflict of interest was the cause of his failure to raise ineffective assistance in the 1990 Motion. A conflict of interest is a factor "external to the defense" constituting "cause" under McCleskey . See Joubert v. Hopkins, 75 F.3d 1232, 1242 (8th Cir.) (in habeas context, "conflicts of interest are examples of factors external to the defense" which constitute "cause" for failure to raise claim), cert. denied, 518 U.S. 1029 (1996); Hollis v. Davis, 941 F.2d 1471, 1478-79 (11th Cir. 1991) (counsel's personal concern for "social ostracism" held to be "external to the defense" and constituted "cause" for failure to raise issue), cert. denied., 503 U.S. 938 (1992).

Without conducting an evidentiary hearing, Judge Johnson rejected the contention that Fox had been conflicted, and without any evidence to support her finding, Judge Johnson somehow determined that Fox had engaged in a "strategy" not to raise ineffective assistance. 161 F. Supp. 2d at 5. Judge Johnson stated she "will not second guess a strategy of defense counsel without proof that the choices were not reasonable." Id. (emphasis added).

The Government never submitted an affidavit from Fox. There is no evidence whatsoever that it was Fox's "strategy" not to raise ineffective assistance in the 1990 Motion. Fox's unilateral decision not to take issue with (and indeed, to endorse) Hibey's performance could not possibly have been a strategy as it served no defense purpose and, to the contrary, doomed Fox's claims of Government misconductan outcome that had to be obvious to Fox. Judge Leighton explains that

the claim for relief based upon the government's breach of its Plea Agreement could not stand unless counsel [Hibey] had acted ineffectively by allowing the breach to occur without objection. As a result, Mr. Fox's failure to assert a claim based upon ineffective assistance of counsel cannot be considered a strategic choice, but must have been motivated by some other concern.

(Id. 55) (emphasis in original).

In addition, Judge Johnson's "statement that there is no proof that the choices were not reasonable' (Opinion at p. 6) is at odds with the record . . . . Given the unrebutted evidence that Mr. Fox never even mentioned Mr. Hibey's deficiencies or discussed with his client the possibility of a claim based upon ineffective assistance of counsel (Pollard Decl. 50-52), it is difficult if not impossible to comprehend how an attorney's unilateral decision to withhold such important information from a client can ever be deemed reasonable,' let alone reasonable as a matter of law . . . ." (Leighton Decl. 40) See Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996), cert. denied., 521 U.S. 1118 (1997) (habeas petition granted; counsel's failure to discuss option with client is not "strategic").

Judge Johnson summarily rejected what Judge Leighton describes as "a very compelling circumstantial case that Mr. Fox had refrained from criticizing Mr. Hibey, and from telling Mr. Pollard that there were serious grounds for criticizing Mr. Hibey, because Mr. Fox had a professional reluctance to criticize a fellow member of the District of Columbia bar." (Id. 33) Judge Leighton points to the following unrebutted facts as establishing the circumstantial case:

• Although the deficiencies in Hibey's performance would have been obvious to Fox, a former Assistant U.S. Attorney, he never told Pollard there were any deficiencies or that there was a viable claim for relief based upon ineffective assistance of counsel (Pollard Decl. 50-52);
• Even though the Government argued in opposition to the 1990 Motion that Hibey's failure to object was strong proof that the Government had acted properly, Fox still refrained from criticizing Hibey, and went out of his way to praise Hibeya gesture that was fatal to the 1990 Motion, as Fox must have recognized (Ex. R at p. 7);
• Fox further demonstrated his extreme aversion to saying anything negative about Hibey when he argued that "The Court Should Have Held a Hearing To Determine Whether There Was a Breach of the plea agreement" (Ex. P at pp. 34-35) (emphasis added) knowing full well it was Hibey's responsibility to request a hearing;
• Hibey and Fox are both members of the D.C. white collar criminal defense bar, and both have served as Assistant U.S. Attorneys in D.C. (Leighton Decl. 42)

Despite these unrebutted facts, Judge Johnson refused to order an evidentiary hearing at which Fox would be required to explain his behavior. Overlooking all of these facts, Judge Johnson mistakenly ruled that the "only" evidentiary support for our claim that Fox was unwilling under any circumstance to criticize Hibey consisted of publications that describe the D.C. white collar defense bar as a "close-knit" group "reluctant to openly criticize one another." 161 F. Supp. 2d at 6. Judge Johnson ruled that these articles alone did not prove that Fox was acting under a conflict of interest. Id. But our claim did not rest upon these articles. Rather, the articles corroborated our circumstantial case by showing that the syndrome we describe is real. (Leighton Decl. 51-52)

Fox's conflictevidenced circumstantially by his otherwise inexplicable behaviorwas an "objective factor external to the defense" sufficient to constitute "cause" under McCleskey for Pollard's failure to raise ineffective assistance in the 1990 Motion. See Joubert, 75 F.3d at 1242; Hollis, 941 F.2d at 1478-79.

Judge Johnson should have ordered an evidentiary hearing at which Fox would have been required to explain his conduct. Instead, Judge Johnson decided without basis that Fox had engaged in a strategy. Jurists of reason would find Judge Johnson's summary ruling that Pollard had failed to show "cause" for not raising ineffective assistance in the 1990 Motion debatable at the very least. The Court should issue a COA with respect to that ruling. ⁶

⁶ Judge Johnson expressly did not reach the issue of whether we had shown "prejudice" under McCleskey. 161 F. Supp. 2d at 4. Pollard satisfies the "prejudice" requirement in two ways. First, in 1990, as now, Pollard had viable claims for ineffective assistance of counsel based upon the issues raised in the Motion for Resentencing. Fox's failure to raise these claims in the 1990 Motion deprived the Court of an opportunity to rule on those claims at that time. Second, Fox's failure to raise ineffective assistance in the 1990 Motion rendered that motion inherently untenable. (Leighton Decl. 55) Had Fox raised ineffective assistance, this Court's majority would likely have recognized Hibey's silences and concessions as the result of ineffective representation, not as proof that the Government had done nothing wrong. See Pollard, 959 F.2d at 1025-26, 1028, 1030. This Court's heavy reliance on Hibey's conduct, treated as if it were the conduct of an effective attorney as Fox had urged, is direct proof of the prejudice to Pollard from Fox's refusal to challenge Hibey's performance.

Without conducting an evidentiary hearing, Judge Johnson summarily rejected the claim that the Government had actively misled Pollard regarding Hibey's performance and that Fox had perpetrated a whitewash. Pollard, 161 F. Supp. 2d at 11. Judge Johnson found that Pollard actually knew the facts supporting his claims of ineffective assistance long before 2000; that in any event, by virtue of the passage of time he "would have" known these facts had he been diligent; and that as a matter of law he is not entitled to equitable tolling. Id. at 9-13.

Jurists of reason would find Judge Johnson's summary determination of these issues debatable at the very least. (Leighton Decl. 69-117)

Jurists of Reason Would Find Debatable Judge Johnson's Ruling, Without Evidentiary Hearing, That Pollard Did Not Exercise Reasonable Diligence And That Equitable Tolling Does Not Apply

Without evidentiary hearing, Judge Johnson found that even if Pollard only learned the facts underlying his claims in 2000, the Motion for Resentencing (filed in 2000) would still be time-barred because "[d]efendant did not exercise due diligence in attempting to discover those facts." Pollard, 161 F. Supp. 2d at 11. Jurists of reason would find that ruling debatable. (Leighton Decl. 95-112)

In any given case, the date on which AEDPA's statute of limitations began to run is a "fact-specific issue." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The Court must determine, in hypothetical terms, "when a duly-diligent person in [Pollard's] circumstances would have discovered" the facts supporting his claims. Id. In making that determination, the Court must consider all of the facts of the individual case. Id. AEDPA's "due diligence" requirement "does not require the maximum feasible diligence, only due,' or reasonable, diligence." Id. at 190 n.4. That it could have been "possible" for a defendant to discover the facts at an earlier date does not mean AEDPA's statute of limitations began to run on that date. Id.

Instead of ordering an evidentiary hearing to determine the specific facts of Pollard's situation, Judge Johnson rested her decision on the mere passage of time and on the existence of other attorneys whose role, and whose awareness (or lack thereof) of Fox's conflict of interest, she never ascertained. 161 F. Supp. 2d at 12.

The unique circumstances of this casein which the Government's misrepresentation about Hibey's performance, and Fox's whitewash of that deficient performance, affirmatively misled Pollard away from a meritorious claim of ineffective assistancewarrant an evidentiary hearing on the issue of Pollard's diligence. The Government purposely misled everyone about Hibey's performance in order to persuade the Court that it had not breached the Plea Agreement. The Government's deception, unchallenged and indeed abetted by Fox, succeeded in persuading not only Judge Robinson (who offered that Hibey "was quite competent," Pollard, 747 F. Supp. at 807), but also this Court's majority, which found it "telling that Pollard's counsel, who reviewed and responded to Secretary Weinberger's submissions in detail and heard the government's argument, never claimed an implicit breach of the agreement not to seek a life sentence." Pollard, 959 F.2d at 1025. See also id. at 1028 ("a good deal of weight must be placed on the contemporaneous interpretation of Pollard's counsel, who apparently thought nothing amiss when the government's allocution included an unflattering presentation of Pollard's character and motive."). Pollardor any prisoner in Pollard's circumstanceswas entitled to read these remarks, and the opinions of the District Court and of this Court as a whole, as further endorsement of the Government's (and Fox's) approving characterizations of Hibey's performance.

Had the Government acknowledged the truth about Hibey's performance, instead of engaging in false praise, it is inconceivable that this Court's majority would have reasoned that Hibey's silence was even relevantmuch less "telling" and entitled to "a good deal of weight"in assessing whether the Government had breached the Plea Agreement. Id. at 1025, 1028. Had the Government been truthful, it is difficult to believe it would have garnered a 2-1 majority in this Court. More likely, Judge Williams would have carried the day, and the life sentence would have been vacated. See id. at 1032-39 (Williams, J., dissenting).

The Government now seeks to bar Pollard's claims forever because he did not unmask the Government's deception earlier. The Court should not tolerate such an argument. The Government should not be heard to argue that Pollard should have been more skeptical of the Government, and should have exercised greater diligence to unmask the deception. See Strickler v. Greene, 527 U.S. 263, 283 n.23, 284, 286-87 (1999) (defense is entitled to take prosecution at its word, and will not be penalized for failing to be skeptical of even a prosecutor's implicit representation).

No defendant should be expected to regard our Government's assertions as deceptive, and to have a meritorious § 2255 motion deemed time-barred because he failed to detect the deception earlier. That is especially so where, as here, the defendant's own habeas counsel joined in the deception, so that no one was telling the defendant (or the Court) the truth. Pollard was entitled to take the Government at its word, and, in the absence of a triggering event that would reasonably cause a prisoner to be on inquiry notice that the Government had lied, the passage of time alone provided no reason for Pollard to spontaneously start disbelieving what the Government and Fox had said in praise of Hibey.

In making the fact-specific determination of when a person in Pollard's circumstances "would have" discovered the facts supporting his claims, 161 F. Supp. 2d at 12, Judge Johnson should have taken into account the deception perpetrated by the Government and abetted by Pollard's own habeas lawyer, and should have recognized the sheer unreasonableness of expecting that a prisoner would independently recognize the deception and somehow unearth the truth. At a minimum, these facts warranted an evidentiary hearing.

Judge Johnson did not perceive any distinction between Pollard's unique situation⁷, in which the Government had led him astray, and the ordinary situation in which a prisoner fails to pursue relief. But as Judge Leighton points out, "there is a fundamental difference between (a) the common situation in which a prisoner fails to take steps to acquire information about possible claims, and (b) the unusual situation in which a prisoner has been affirmatively misled by the government into believing he has no claims. While a prisoner in the first situation might be accused of a lack of due diligence based upon mere inaction over a period of time, a prisoner in the second situation should be entitled to prove that the government's deception induced the inaction. Such a contention necessarily entails a credibility determination, which can only be made after an evidentiary hearing." (Leighton Decl. 100-101)

⁷ Judge Johnson's concern about opening the floodgates to revisiting other § 2255 claims is unwarranted. 161 F. Supp. 2d at 6. It is unlikely that many cases involve the same confluence of events, namely a Government misrepresentation which is covered up by a conflicted habeas counsel who feels obliged to praise prior counsel to the detriment of his client. (Leighton Decl. 53-60)

This principle is applied in other areas of law as well. See, e.g. , Newman v. Warnaco Group, Inc., 335 F.3d 187, 194 (2d Cir. 2003) (in securities law, "[t]here are occasions when despite the presence of some ominous indicators, investors may not be considered to have been placed on inquiry notice because the warning signs are accompanied by reliable words of comfort from management. ") (emphasis added) (internal citation omitted).

Judge Johnson also refused an evidentiary hearing on the issue of whether Pollard was entitled to equitable tolling. Despite abundant case law that holds that AEDPA's statute of limitations is subject to equitable tolling, see, e.g., Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n.1 (3rd Cir. 1998), Judge Johnson ruled that as a matter of law, AEDPA's statute of limitations is never subject to equitable tolling. 161 F. Supp. 2d at 12. In addition, Judge Johnson summarily ruled that on the facts of this case Pollard would not be entitled to equitable tolling in any event. Id. at 12-13.

Jurists of reason would differ. Judge Leighton concludes that the unusual circumstances here, "in which the government's misrepresentations (compounded by habeas counsel) led the defendant to believe, plausibly but incorrectly, that he had no grounds for relief based upon counsel's performance," mandate an evidentiary hearing to determine if equitable tolling applies. (Leighton Decl. 116) See Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (under AEDPA, "a court may deny a request for equitable tolling unless the proponent shows that he was actively misled" ) (emphasis added); Curtis v. Mount Pleasant Correctional Facility, 338 F.3d 851, 855 (8th Cir. 2003) (under AEDPA, equitable tolling may be warranted "where the state's conduct has somehow lulled the petitioner into inaction.") (emphasis added); Laws v. Lamarque, __ F.3d __, 2003 U.S. App. LEXIS 24457, at *11 (9th Cir. Dec. 5, 2003) (AEDPA "do[es] not require [prisoner] to carry a burden of persuasion at this stage . . . . Rather, our cases require only that there be circumstances consistent with petitioner's petition . . . under which he would be entitled . . . to equitable tolling' for further factual development to be required.").

In summarily finding that Pollard had failed to exercise due diligence, Judge Johnson gave considerable weight to the existence of certain attorneys, some of whom never even represented Pollard.⁸ 161 F. Supp. 2d at 7 n.3. Judge Johnson never held an evidentiary hearing to determine (a) whether these attorneys had represented Pollard; (b) if so, what role they had served; and (c) what conversations, if any, they had had with Fox regarding his failure to raise ineffective assistance, and what explanation, if any, Fox had given them. Without these facts, it was unfair as well as incorrect to assume Pollard had not been diligent.

⁸ Former Justice Arthur Goldberg never represented Pollard. Nancy Luque purported at one time to represent Pollard, but later denied she had ever represented him. These facts would have been readily established at an evidentiary hearing.

For example, after the District Court had denied Fox's 1990 Motion, Fox appealed, and filed the initial brief for the appellant. Theodore Olson and his partners John Sturc and Theodore Boutros then entered the case and filed the reply brief. Because there was no evidentiary hearing, Judge Johnson did not know whether Mr. Olson or any of his partners ever asked Fox why he had not raised ineffective assistance, or, if they did, what answer Fox gave. Without an evidentiary hearing to determine these facts, there was no evidence that any lawyer knew that it had been entirely Fox's decision, without any input from Pollard, to refrain from raising ineffective assistance. Absent such knowledge, these lawyers had no reason to suspect that Fox was conflicted and had covered up for Hibey, or that Pollard could still assert an ineffective assistance claim consistent with the requirements of McCleskey.

Moreover, Judge Johnson inappropriately penalized Pollard for supposedly not having acted diligently before AEDPA's enactment. 161 F. Supp. 2d at 11-12. All but one of the attorneys listed by Judge Johnson had ceased involvement with Pollard before AEDPA was enacted. Pollard's sole attorney from 1995 forward was Larry Dub, a corporate lawyer practicing mainly in Israel, who represented Pollard in connection with efforts to obtain fair treatment by the Government of Israel. (Pollard Decl. 56) Again, because there was no evidentiary hearing, Judge Johnson had no basis to conclude that Dub had knowledge of any facts relating to a claim of ineffective assistance.

In addition, while Pollard has always been extremely diligent in his efforts to achieve freedom through every lawful means, as a matter of law he was not obligated to act diligently prior to AEDPA's enactment. See Aron v. United States, 291 F.3d 708, 712-713 (11th Cir. 2002) (AEDPA's diligence requirement may not be applied retroactively).⁹ Nevertheless, the Court "should consider" pre-AEDPA events "to assess what it would have been reasonable for [the prisoner] to do after that date." Id. at 713. Here, the crucial pre-AEDPA events were the Government's and Fox's mutual false praise of Hibey. The enactment of AEDPA did not cause Pollardand would not have caused a hypothetical reasonable prisonerto spontaneously start doubting the unanimous praise of Hibey made six years earlier.

⁹ Drew v. Dep't of Corrections, 297 F.3d 1278 (11th Cir. 2002), cert. denied, 537 U.S. 1237 (2003), limits Aron by holding that while the prisoner's duty of diligence created by AEDPA may not be imposed retroactively, nothing prohibits a court from examining the prisoner's pre-AEDPA diligence in deciding whether equitable tolling should apply. Id. at 1291. However, Judge Johnson improperly considered Pollard's putative lack of pre-AEDPA diligence and the existence of other pre-AEDPA attorneys for all purposes, not just for purposes of equitable tolling. 161 F. Supp. 2d at 11-12.

Jurists of reason would find debatable Judge Johnson's rulings, made without evidentiary hearing, that as a matter of law Pollard (a) was not diligent and (b) is not entitled to equitable tolling.

Jurists of Reason Would Find Debatable Judge Johnson's Ruling, Without Evidentiary Hearing, That Pollard Knew The Facts Supporting Each of His Claims Long Before 2000

It is not correct, as Judge Johnson found, that Pollard actually "knew the acts or omissions of counsel supporting his claim . . . years before May 2000." Pollard, 161 F. Supp. 2d at 9 n.5. Pollard has stated, in detailed and specific terms, that prior to May 17, 2000, when the undersigned counsel met him for the first time, he did not know various essential facts that support his claim for ineffective assistance, including specific acts and omissions of counsel. (Pollard Decl. 3, 6, 16, 40-42, 50-61) For example, prior to May 17, 2000 Pollard did not know that Hibey had never put the Government to its proof and had never demanded an evidentiary hearing on the Government's devastating, false allegation that Pollard had caused more harm than had Walker, Whitworth and Pelton. (Id. 59)

There is no evidence that Pollard actually knew of Hibey's omissions before 2000. There is no affidavit from Hibey, Fox, or anyone else claiming to have discussed these omissions with Pollard. On this record, pending an evidentiary hearing, "the Court must take as true plaintiff's sworn testimony that he was never informed by anyone of" these omissions "until after the statute of limitations for filing a habeas petition had expired." Vasquez v. Greiner, 68 F. Supp. 2d 307, 310 (S.D.N.Y. 1999).

In ruling that Pollard knew "the acts or omissions of counsel" supporting his claims, Judge Johnson indiscriminately lumped all of the claims together. 161 F. Supp. 2d at 9 n.5. Judge Johnson "did not do a claim-by-claim analysis to determine when Pollard learned the facts underlying each claim of ineffective assistance." (Leighton Decl. 76) Had Judge Johnson done so, she would have realized that, at a minimum, there is no evidence that Pollard knew any facts before May 17, 2000 supporting his claim that Hibey had failed to put the Government to its proof or to demand an evidentiary hearing on the crucial issue of whether Pollard had caused more harm than had the three Soviet spies.

Moreover, as discussed in the next sub-section, with regard to other claims for which Pollard knew some of the acts or omissions, he lacked sufficient knowledge to assert a claim of ineffective assistance because he did not know other facts essential to such a claim.

Judge Johnson's determination, made without evidentiary hearing, that Pollard actually knew the facts supporting each of his claims is contrary to the record. Jurists of reason would find it debatable at the very least. (Leighton Decl. 75-83)

Jurists Of Reason Would Find Debatable Judge Johnson's Ruling That The "Facts" Supporting A Claim Of Ineffective Assistance Do Not Include The Norms Of The Legal Profession

In order to assert a claim of ineffective assistance, a prisoner must allege that the attorney's conduct was unreasonable under the prevailing norms of the legal profession. Absent the existence of such norms and an unreasonable deviation therefrom, there is no basis for a claim of ineffective assistance. As this Court explained in United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990), in the ineffective assistance context

[t]he proper measure of an attorney's performance is "reasonableness under prevailing professional norms." "Prevailing norms of practice," such as those reflected in the ABA Standards, may inform our determination of what is reasonable.

Id. at 1018 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)) (internal citations omitted).

The prevailing norms of the legal professionlike those of other professionsare facts. See, e.g. , Williams v. Callahan, 938 F. Supp. 46, 50 (D.D.C. 1996) (claim for legal malpractice based upon ineffective assistance of criminal trial counsel "require[s] the testimony of an expert witness" to establish standard of care for trier of fact); Int'l Tele-Marine Corp. v. Malone & Assocs., Inc., 845 F. Supp. 1427, 1434 (D. Colo. 1994) ("whether an attorney exercised a reasonable degree of care or skill in representing its [sic] client is a question of fact"). See also Leighton Decl. 71. Nevertheless, Judge Johnson ruled that the norms of the legal profession are not facts, and that a prisoner's lack of knowledge of such norms has no bearing on whether the prisoner knows the facts supporting a claim of ineffective assistance. Pollard, 161 F. Supp. 2d at 10.

A prisoner who does not know that the attorney deviated from norms of the legal profession lacks knowledge of facts necessary to assert a claim of ineffective assistance. For example, a defendant may be present in the courtroom while his attorney fails to do certain things (e.g., fails to object to a breach of a plea agreement). Frequently, the defendant will be oblivious to that failing, and will remain oblivious until he becomes aware of the fact that the attorney had a duty to perform these tasks. The Supreme Court has observed that "[a] layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case." Kimmelman v. Morrison,, 477 U.S. 365, 378 (1986) (emphasis added) (internal citation omitted). See also Nell v. James,, 811 F.2d 100, 105 (2d Cir. 1987) (where counsel had failed to tell the court at suppression hearing that defendant resided in premises and therefore had standing to challenge search, defendant's lack of recognition that counsel had acted ineffectively "is a credible explanation for his failure to present the [ineffective assistance] claim earlier"); Flanagan v. Johnson,, 154 F.3d 196, 199 (5th Cir. 1998) ("The factual predicate of [prisoner's] claim [was] the fact that he was called to testify and did not know," because trial counsel had not informed him, that "he had the right to refuse" to testify; AEDPA's statute began to run when prisoner learned both facts).

Once made aware of the attorney's duties, the defendant has actual knowledge of the facts, and can assert a claim of ineffective assistance. See United States v. Smith,, 101 F. Supp. 2d 332, 347 (W.D. Pa. 2000) (defendant was oblivious to counsel's duty to request adjournment of sentencing; only when he learned that fact years later did AEDPA's statute of limitations begin to run).

That is what happened here. Shortly before March 2000, Pollard was put on notice for the first time of Hibey's duty under prevailing professional norms to file a Notice of Appeal, and of Hibey's breach of that duty. (Pollard Decl. 57) That led Pollard to search diligently for counsel. (Id. 58) On May 17, 2000, during his initial meeting with the undersigned counsel, Pollard was informed of additional facts necessary to assert claims of ineffective assistance. (Id. 59) It was only on May 17, 2000 that Pollard learned of the prevailing professional norms that Hibey had breached, such as the duty to object to the Government's breaches of its Plea Agreement. (Id.) Only then did Pollard attain knowledge of sufficient facts to assert his claims of ineffective assistance.

While Judge Johnson emphasized that Pollard was present at his sentencing and therefore supposedly "knew" what Hibey had failed to do, 161 F. Supp. 2d at 9 n.5, case lawnot addressed by Judge Johnsonestablishes that the defendant's being present when the lawyer omits to perform his duty does not mean that the defendant knows the facts needed to assert the claim of ineffective assistance. Rather, the defendant knows the facts once he learns of the professional norms that the attorney breached, and is thereby able to recognize the attorney's omissions.

For example, in United States v. Smith, 101 F. Supp. 2d 332 (W.D. Pa. 2000), the court held timely a § 2255 motion based on ineffective assistance of sentencing counsel where the defendant filed the motion several years after the deficient performance at sentencing.

In Smith, counsel knew at sentencing that the defendant also had state charges pending. To ensure that the U.S. Bureau of Prisons ("BOP") would give credit toward a federal sentence for time spent in state custody, counsel had a duty to ask the federal court to adjourn the sentencing until after the state court had imposed sentence, and then to ask the federal court for a concurrent sentence. Id. at 346-47. Counsel failed to ask for an adjournment or for a concurrent sentence.

Shortly after being sentenced in federal court, the defendant was sentenced in state court, and began serving his state sentence. Upon completion of that sentence, he was transferred to the BOP, which refused to credit his state time toward his federal sentence. Before that point, the defendant did not realize that his attorney may have deviated from professional norms by failing to request an adjournment of the federal sentencing. See id. at 336, 347.

Within one year of discovering that fact, but nearly four years after the attorney's deficient performance at sentencing, the defendant filed a § 2255 motion based on ineffective assistance of counsel at sentencing. Even though the defendant had been present in the courtroom when his attorney had acted deficiently by failing to request an adjournment of sentencing, the court ruled that the motion was timely since the defendant had filed within one year of learning the facts supporting his claim for ineffective assistance, which included the attorney's duty to request an adjournment. Id. at 337, 347.

Pollard's sentencing counsel, Hibey, had various duties under prevailing professional norms, and failed to perform those duties. Like the defendant in Smith, Pollard was present at his sentencing but did not know that Hibey had these duties until alerted by a triggering eventa chance conversation with another inmate, which led Pollard to search diligently for and engage new counsel. Just as AEDPA's statute of limitations began to run in Smith only when the triggering event (a refusal by the BOP to credit his state time) caused the prisoner to recognize that his counsel had breached a duty years earlier, so too the statute of limitations on Pollard's claims began to run only as of the triggering event.

Similarly, in Lewis v. United States, 985 F. Supp. 654 (S.D. W.Va. 1997), the defendant had pled guilty to violating the federal mail fraud statute. The scheme had involved use of a private mail carrier. The defendant did not know that at the time of the offense a scheme to defraud implemented through the use of a private mail carrier did not violate the mail fraud statute. Id. at 656.

Defendant eventually learned that. Eight months after making that discovery, but more than a year after his sentencing, defendant moved under § 2255 to vacate his plea, based, inter alia, on ineffective assistance of counsel. Id. at 656. The court granted the motion.

Rejecting the argument that the motion was barred by AEDPA's statute of limitations, the court held that "the limitations period began to run . . . when Movant first learned his conviction was flawed. Prior to this time Movant was unaware of the basis of his present claims[.]" Id. at 656. The court held the claim timely because the defendant "ultimately brought the instant motion less than one year after discovering . . . his counsel's errors," including his counsel's duty "to conduct a reasonable investigation to ascertain the facts of the offense of conviction," a duty counsel had breached. Id. at 658.

Thus, while the defendant knew the underlying fact that he had used a private mail carrier in implementing his fraudulent scheme, and had been present in the courtroom at all relevant times, AEDPA's statute of limitations only began to run when he learned of his attorney's duty to investigate the facts and make sure they satisfied the elements of the charge to which he was pleading guilty.

Judge Johnson never addressed Smith or Lewis, which were the subject of extensive briefing. Judge Johnson relied instead on Fraser v. United States, 47 F. Supp. 2d 629 (D. Md.), appeal dism'd without op., 188 F.3d 504 (4th Cir. 1999), a case with no ineffective assistance claim, which held that AEDPA's statute of limitations ran even though the defendant did not "appreciate the legal consequences of known facts." Id. at 630 (emphasis added). Citing Fraser, Judge Johnson ruled that the limitations period begins to run "when a defendant discovers facts, not the legal consequences of those facts." 161 F. Supp. 2d at 10. However, we do not rely on the argument that where the facts are known, the statute of limitations does not begin to run until the prisoner comes to understand the legal consequences of those facts. Fraser does not address the issue of what are the facts supporting a claim of ineffective assistance.

The prevailing professional norms (and corresponding duties of counsel) are not the same thing as the "legal consequences" of known facts. For example, following sentencing, an attorney has a duty under prevailing professional norms to file a timely Notice of Appeal, or at least to inform the client of the need to do so on a timely basis. See ABA Standards § 4-8.2. The legal consequence of failing to file a Notice of Appeal is that the defendant loses the right to direct appellate review, and any subsequent review must be via collateral attack, with its correspondingly higher burden. The "duty" and the "legal consequences" of breaching that duty are distinct. (Leighton Decl. 93-94) A prisoner need not know the "legal consequences" of anything to assert a claim, but must know of the attorney's duty, and breach thereof, for without the existence of such a duty, and a breach thereof, there is no claim to assert.

Finally, in the closely analogous area of the law concerning accrual of statutes of limitations for professional liability claims, the statute of limitations likewise begins to run only when the claimant learns of the duties the professional breached, even if the plaintiff is fully aware of the injury. See, e.g., Doe v. Am. Nat'l Red Cross, Civ. No. 92-645 (CRR), 1993 U.S. Dist. LEXIS 1089, at *4-5 (D.D.C. Jan. 28, 1993) (where plaintiff received HIV-contaminated transfusion from defendant, court found issue of fact as to whether statute of limitations began to run when plaintiff learned of defendant's duty to screen blood, or years earlier when plaintiff was diagnosed as HIV positive; knowledge that defendant breached professional duty to plaintiff is "essential fact" necessary for accrual of statute of limitations); Hughes v. United States, 263 F.3d 272, 275-78 (3d Cir. 2001) (statute of limitations began to run only when plaintiff amputee reasonably should have learned of physician's duty and breach thereof which led to amputations, not years earlier when amputations had been performed).

Inasmuch as Judge Johnson ignored significant case law in reaching the conclusion that the norms of the legal profession are not among the facts supporting a claim of ineffective assistance of counsel, jurists of reason would find the ruling debatable. (Leighton Decl. 84-94)

In sum, jurists of reason would find debatable Judge Johnson's ruling, made without evidentiary hearing, that AEDPA's statute of limitations bars the Motion for Resentencing. The Court should issue a COA with respect to that ruling.

This motion seeks a COA from the August 7, 2001 Judgment issued by Judge Johnson. While Judge Hogan's November 12, 2003 Memorandum Opinion denying the Motion for a COA does not govern this Court's determination of this motion, it is nevertheless instructive to understand why Judge Hogan's reasoning is not dispositive. As shown below, Judge Hogan never addressed our principal argument, and addressed arguments we did not make or on which we do not rely. ¹⁰

¹⁰ Citations to Judge Hogan's November 12, 2003 Memorandum Opinion are in the form "Slip Op. at __."

Judge Hogan Did Not Address The Argument That The Government May Not Benefit From Its Own Misrepresentation

Judge Hogan wrote that "Judge Johnson correctly found that Mr. Pollard had failed to exercise due diligence since he waited more than thirteen years to file a motion challenging his attorney's performance at sentencing and his attorney's failure to note an appeal." (Slip Op. at p. 13)

In reaching that conclusion, Judge Hogan did not address our main argument: that the Government may not benefit from its own misrepresentation about Hibey's supposedly skillful and error-free performance. Despite extensive briefing and oral argument (see. Tr. Sept. 2, 2003, pp. 27-40), Judge Hogan did not address this critical point or the documentary evidence that supports it.

Instead, Judge Hogan cited case law that did not involve any Government misrepresentation. Judge Hogan relied on Montenegro v. United States, 248 F.3d 585 (7th Cir. 2001), in which the court found that the defendant had failed to act with due diligence because the fact "[t]hat an appeal had not been filed was a matter of public record which reasonable diligence could have unearthed.'" (Slip Op. at 13) The prisoner in Montenegro had asked his lawyer to file a Notice of Appeal, but had never followed up. There was no Government deception that steered the prisoner away from pursuing his rights. Montenegro is no different from the run-of-the-mill case in which the prisoner is awaiting a specific event, but fails to monitor whether the event has occurred. In contrast, "Pollard was not waiting for anything. He was not waiting for a court decision. He was not waiting for his attorney to file a pleading or motion with the court. As a result of the Government's deception, in Mr. Pollard's mind the court case was over." (Leighton Decl. 109) (emphasis in original).

In sum, Judge Hogan's Opinion never addressed the fundamental issue of the Government's actively misleading Pollard away from any claim of ineffective assistance.

We Do Not Rely On The Argument That The Statute Of Limitations Only Begins To Run When The Prisoner Recognizes The "Legal Significance" Of Known Facts

Judge Hogan cited cases for the proposition that the statute of limitations runs even though the defendant fails to understand the "legal significance" of known facts. (Slip Op. at pp. 11-12) As set forth above (Section II(C)), we do not rely on that argument. We contend that the facts supporting a claim of ineffective assistance include the attorney's duties based upon prevailing professional norms, so that a prisoner who is unaware of those duties lacks knowledge of essential facts needed to assert a claim.

Judge Hogan cited Owens v. Boyd, 235 F.3d 356 (7th Cir. 2001), in which the court discussed known facts that supported an ineffective assistance claim, and rejected the argument that the statute of limitations began running "when the prisoner recognized their legal significance." Id. at 359. Owens sheds no light on the issue we raise.

Judge Hogan also cited Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001). In that case, the court held that defendant's knowledge of "some facts" that supported a claim that counsel's performance was "deficient to an extent" did not trigger the statute of limitations inasmuch as defendant lacked knowledge of all of the facts required to support a good faith assertion of ineffective assistance. Id. at 1154 & n.3. While the court was not asked to rule whether the attorney's duties under prevailing professional norms are among the facts necessary to support an ineffective assistance claim, Hasan supports our position that a defendant's knowledge of some salient facts does not trigger the statute of limitations until the defendant acquires knowledge of sufficient facts to assert a claim.

Finally, Brackett v. United States, 270 F.3d 60 (1st Cir. 2001), another case cited by Judge Hogan, did not involve a claim of ineffective assistance, and has no bearing on whether the attorney's duties under the norms of the legal profession are among the facts supporting such a claim.

In sum, Judge Hogan addressed an argument on which we did not rely. ¹¹

¹¹ While we need not rely on this argument, there is respected authority that until a prisoner understands the legal significance of his attorney's conduct, he is not in a position to assert a claim of ineffective assistance. See Nell v. James, 811 F.2d 100, 105 (2d Cir. 1987); Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Pollard lacked knowledge of essential facts supporting his claims, but also lacked any awareness of the legal significance of Hibey's conduct. Because Pollard's lack of knowledge of the underlying facts prevented the statute of limitations from running, there is no need to reach the issue of whether Pollard's lack of awareness of the legal significance of Hibey's conduct also prevented the statute from running. However, were the Court to reach this issue, we submit that the foregoing authority should be followed.

It Is Not Our Argument That There Is A Right To "Effective" Assistance Of Counsel At The Habeas Level

Judge Hogan incorrectly described our argument as a claim that Pollard "was provided post-conviction ineffective assistance of counsel" as a result of Fox's failure to raise Hibey's ineffectiveness in the 1990 Motion. (Slip Op. at p. 16) Judge Hogan invoked case law for the uncontroverted proposition that "a defendant is not entitled to the assistance of counsel in connection with a § 2255 motion[.]" (Id.)

We have never argued that there is a right to effective assistance at the habeas level. It is not our claim that Fox was "ineffective." Our claim is that Fox was conflicted, and that his failure to raise Hibey's ineffectiveness in the 1990 Motion was intentional and the result of an ethical breach. That is not being "ineffective." That is being unethical.

All of the cases cited by Judge Hogan (Slip Op. at pp. 16-17) involved claims of attorney error, not ethical breaches. Under principles of agency, an attorney's error is imputed to the client. As a result, attorney error cannot constitute "cause," because cause must be "external to the defense" under McCleskey. See Coleman v. Thompson, 501 U.S. 722, 753 (1991). By contrast, ethical breaches are external to the defense. See Joubert, 75 F.3d at 1242; Hollis, 941 F.2d at 1478-79. The acts of a conflicted habeas attorney are not imputed to the client, since the attorney has ceased to act in the interests of the client. See United States v. Baldayaque, 338 F.3d 145 (2d Cir. 2003).

The crucial distinction between errors and ethical violations is illustrated in the recent decision in Baldayaque. The Second Circuit held that a habeas attorney's ethical violationsincluding the attorney's failure to file a § 2255 motion as the client had requested, and his failure to explain matters so as to enable the client to make "informed decisions"were "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered extraordinary.'" Id. at 152. Holding that such behavior by habeas counsel constituted "extraordinary circumstances" for purposes of equitably tolling AEDPA's statute of limitations, the Second Circuit remanded to the district court to determine (a) whether defendant had acted as diligently as reasonably could have been expected under the circumstances, taking into consideration factors such as his habeas attorney's "assurances that everything had been done that could be done," and (b) whether the habeas attorney's conduct had caused the defendant not to file a timely § 2255 motion. Id. at 153.

Baldayaque directly supports our argument that Fox's breaches of his ethical obligations (his undisclosed conflict that prevented him from raising ineffective assistance, and his decision to risk losing the 1990 Motion rather than criticize Hibey) constitute extraordinary circumstances warranting equitable tolling. As in Baldayaque, Fox's ethical breaches (a) gave Pollard the reasonable but incorrect belief that "everything had been done that could be done," id. at 153, and (b) caused Pollard not to assert a claim of ineffective assistance in the 1990 Motion, a claim he would certainly have asserted but for Fox's unethical behavior. See Pollard Decl. 50-53, 60.

Judge Hogan wrote that Baldayaque is "easily distinguishable" because the attorney filed no § 2255 motion (he filed a motion requesting immediate deportation), whereas Fox filed the 1990 Motion and then appealed its denial. (Slip Op. at p. 15) But Baldayaque holds that the client is not penalized for the misconduct of an unethical attorney. Id. at 152 (citing Connecticut Rules of Professional Conduct §§ 1.1, 1.4). As Judge Jacobs elaborated in his concurring opinion, an unethical attorney's conduct is not imputed to the client since he has ceased acting on the client's behalf. That distinguishes the unethical attorney from the negligent attorney. Id. at 154-55 (Jacobs, J., concurring).

A conflicted attorney who goes through the formality of filing papers and making arguments he knows are untenable, and who is willing to "torpedo" his client's motion rather than criticize a colleague (Leighton Decl. 44) is no betterand we submit, far worsethan a lazy attorney who files the wrong motion, as in Baldayaque .

Because Fox had filed a § 2255 motion and the Baldayaque attorney had not, Judge Hogan wrote that "Mr. Pollard's is not a case where the habeas attorney abandoned' the defendant." (Slip Op. at p. 15) But that is exactly what Fox did. To avoid criticizing a colleague in this high-profile case, Fox abandoned his client as surely as the attorney in Baldayaque abandoned his. And, unlike the attorney in Baldayaque, Fox was fully aware of what he was doing to his client.

Pollard has raised serious, documented claims of ineffective assistance of counsel. Moreover, jurists of reason would find Judge Johnson's procedural rulings debatable in numerous respects. The Court should issue a Certificate of Appealability so that Judge Johnson's August 7, 2001 Memorandum Opinion and Judgment can be reviewed on appeal.

Defendant respectfully requests that this motion be assigned to a three-judge panel, and that oral argument be held.

Dated: January 14, 2004

Respectfully submitted,
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

__________________________
Eliot Lauer

__________________________
Jacques Semmelman

1200 New Hampshire Avenue, N.W., Suite 430
Washington, D.C. 20036
(202) 452-7373

-and-

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
Fax: (212) 697-1559

Attorneys for Jonathan Jay Pollard

DOROTHI MCCOY certifies as follows under penalty of perjury:

On January 14, 2004, I caused to be served by hand delivery a true copy of the foregoing Defendant's Motion for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c), on:

Roy McLeese III, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

__________________________

DOROTHI MCCOY

• The Court Case Page